Current through Register Vol. 50, No. 6, December 1, 2023
RELATES TO:
KRS
205.8451,
205.8453,
42 C.F.R. 431 Subpart E, 455.12, 455.13, 455.16(c)(4)
NECESSITY, FUNCTION, AND CONFORMITY: EO 2004-726, effective
July 9, 2004, reorganized the Cabinet for Health Services and placed the
Department for Medicaid Services and the Medicaid Program under the Cabinet for
Health and Family Services. The Cabinet for Health and Family Services,
Department for Medicaid Services, has responsibility to administer the Medicaid
Program.
KRS
205.520(3) empowers the
cabinet, by administrative regulation, to comply with any requirement that may
be imposed or opportunity presented by federal law for the provision of medical
assistance to Kentucky's indigent citizenry.
KRS
205.8453(4) directs the
Cabinet for Health Services to institute other measures necessary or useful in
controlling fraud and abuse. This administrative regulation establishes an
administrative process which provides due process prior to disqualification or
request for repayment of Medicaid benefits paid on behalf of a recipient. This
administrative regulation establishes the provisions relating to enhanced
program integrity of the Medicaid Program and applies to all Kentucky Medicaid
recipients.
Section 1. Definitions.
(1) "Benefit" is defined in
KRS
205.8451(1).
(2) "Department" means the Department for
Medicaid Services or its designated agent.
(3) "Disqualification hearing" means a
hearing conducted by a Cabinet for Health Services hearing officer if:
(a) An adult recipient or responsible party
has been found, through an investigative process, to have committed MA IPV;
and
(b) The individual has appealed
the finding.
(4)
"Extraordinary circumstance" means a medical condition other than pregnancy or
postpartum which results from a communicable disease or other condition that
creates a risk to public health, or a condition which, if not treated, could
result in immediate grave bodily harm.
(5) "Judicial review" means a review of a
final agency order by the appropriate circuit court, plus further appeal to the
Kentucky Court of Appeals or Kentucky Supreme Court.
(6) "Medicaid intentional program violation"
or "MA IPV" means an action in which a recipient or responsible party makes a
false or misleading statement, or misrepresents, conceals or withholds a fact
or commits a violation of a state or federal law relating to the Medicaid
program which results in a financial loss to the department.
(7) "Penalty" means an administrative action
taken by the department which restricts or revokes a recipient's participation
in the Medicaid Program or requires the repayment of the value of the benefits
received.
(8) "Recipient" is
defined in
KRS
205.8451.
(9) "Responsible party" means an individual
who is either:
(a) A parent or legal guardian
of a minor child who is a Medicaid recipient;
(b) A Medicaid recipient who is eighteen (18)
years old or older;
(c) A spouse
aged eighteen (18) years old or older of a Medicaid recipient;
(d) An individual who possesses a power of
attorney for the Medicaid recipient; or
(e) A legal guardian for an incompetent adult
Medicaid recipient.
Section
2. Medicaid Intentional Program Violation. A Medicaid intentional
program violation shall be deemed to occur if the Medicaid recipient or
responsible party, age eighteen (18) or older, caused a financial loss to
Medicaid by:
(1) Making a false or misleading
statement to obtain a Medicaid benefit;
(2) Misrepresenting, concealing, or
withholding a fact to obtain a Medicaid benefit;
(3) Committing a violation of a state or
federal law or regulation relating to the Medicaid Program;
(4) Defrauding the department during the
Medicaid eligibility process;
(5)
Abusing the Medicaid Program by allowing an individual other than the one (1)
listed on the MAID card to obtain a health care benefit by use of the
household's card; or
(6)
Inappropriately obtaining a covered service.
Section 3. Medicaid Intentional Program
Violation Identification Procedures.
(1) The
department shall notify a Medicaid Program recipient of a change in Medicaid
policy for which he shall be held liable with respect to a Medicaid intentional
program violation in accordance with the criteria specified in this
administrative regulation.
(2) The
department shall provide a Medicaid recipient with a toll free number to report
an allegation of possible fraud or abuse of the Medicaid Program by a recipient
or provider.
(3) The department
shall identify that a possible Medicaid intentional program violation occurred
through:
(a) Computer matches;
(b) Collateral contacts;
(c) Hotline referrals;
(d) Quality control reviews; or
(e) Other valid reports or information
previously unknown to the department.
Section 4. Medicaid Intentional Program
Violation Referral Procedures.
(1) If a
finding from a preliminary investigation in accordance with Section 3 of this
administrative regulation warrants a full investigation, the department shall:
(a) Interview the responsible party and
request verification of information previously unknown to the department for
the specified period of time that the alleged Medicaid intentional program
violation occurred;
(b) Allow the
responsible party the opportunity to review and refute evidence obtained by the
department; and
(c) Calculate the
value of the covered services rendered based on Medicaid payments made on
behalf of the recipient for the time period that the recipient received covered
services through an alleged Medicaid intentional program violation.
(2) Within ten (10) days of the
date of the interview, the following shall occur:
(a) The department shall provide the
recipient or responsible party the opportunity to review and refute findings of
the investigation;
(b) The
responsible party shall be allowed to reimburse the Medicaid Program in full
for the money expended for benefits by the department during the period of
noneligibility based on the Medicaid intentional program violation;
(c) If the responsible party does not agree
to the repayment or with the evidence he reviews, and wishes to request a
disqualification hearing, he shall sign form MAP-800 and the disqualification
hearing shall be scheduled, in accordance with Section 6 of this administrative
regulation; and
(d) If the
responsible party does not appear for the interview identified in subsection
(1)(a) and (b) of this section or request a disqualification hearing, he shall
be disqualified effective with the first administratively feasible
month.
Section
5. Continued Participation in the Medicaid Program While Awaiting
a Disqualification Hearing. A pending hearing shall not affect the recipient's
right to participate in the Medicaid Program unless the hearing officer:
(1) Rules that the responsible party
committed a Medicaid intentional program violation; and
(2) Revokes the recipient's current
eligibility.
Section 6.
Disqualification Hearing Process.
(1) The
recipient or responsible party shall have thirty (30) days from the date listed
on form MAP-800 to request a hearing through the department.
(2) Upon receipt of the hearing request, the
Cabinet for Health Services shall conduct the disqualification hearing for a
responsible party suspected of a Medicaid intentional program violation in
accordance with the requirements of KRS Chapter 13B and 42 CFR Part 431 ,
Subpart E.
(3) The department
shall:
(a) Provide written notice in
accordance with
KRS
13B.050 to the responsible party suspected of
a Medicaid intentional program violation at least twenty (20) days before the
date the disqualification hearing is scheduled;
(b) Arrange the time and place of the hearing
so that the hearing is accessible to the responsible party accused of a
Medicaid intentional program violation;
(c) Indicate on the advance written notice an
individual or organization who may be available to provide free legal
representation; and
(d) Conduct a
telephonic hearing if the responsible party and a party or witness required to
testify under oath or affirmation consents.
(4) If requested by the responsible party,
another designated person or his legal counsel, the department shall provide
one (1) free copy of the portions of the case file that are relevant to the
hearing.
(5) Pursuant to
KRS 13B.110,
within sixty (60) days of the date the responsible party requests a hearing in
writing, the department shall:
(a) Schedule
the hearing;
(b) Conduct the
hearing;
(c) Arrive at a
recommended decision; and
(d)
Notify the responsible party and the Cabinet for Families and Children,
Department for Community-Based Services of the decision.
(6) The hearing decision shall comply with
federal law and regulation and shall be based on the hearing record. The
hearing record shall:
(a) Comply with the
requirements of
KRS
13B.130;
(b) Be binding on the department in that the
department shall bear the burden of proof based on the preponderance of
evidence;
(c) Summarize the facts
of the case;
(d) Specify the
reasons for the decision; and
(e)
Identify:
1. The supporting
evidence;
2. Kentucky Revised
Statutory citations, if applicable;
3. Kentucky administrative regulations;
and
4. Corresponding federal
law.
(7) A
final order shall be issued by the commissioner of the department to the
responsible party or legal counsel and the Department for Community-Based
Services pursuant to
KRS 13B.120. The
final order shall include the following:
(a)
The disqualification hearing decision;
(b) The reasons for the decision;
and
(c) If a current recipient, the
continuance or revocation of the Medicaid benefits for the recipient, and the
amount of repayment due to the department as determined by the hearing
officer.
(8) The hearing
record shall be retained:
(a) For a period of
five (5) years from the month of origin of each record, for program records;
and
(b) For a period of five (5)
years from the date of fiscal or administrative closure, for a fiscal record or
accountable document.
(9)
The hearing record shall be available to the responsible party, designated
person or legal counsel during the normal business week, Monday through Friday,
excluding state holidays from 8 a.m. through 4:30 p.m. (eastern standard time)
for copying and inspection.
(10)
One (1) copy of the hearing material shall be provided to the responsible
party. If additional copies are required, an appropriate fee which approximates
cost shall be paid by the responsible party in accordance with
KRS
61.872.
Section 7. Failure to Appear or Postponement
of the Hearing.
(1) If the responsible party
fails to attend a disqualification hearing and is determined to have committed
a Medicaid intentional program violation, and a hearing officer later
determines that the responsible party or representative had good cause for not
appearing, pursuant to subsection (2) of this section:
(a) The previous decision shall be void;
and
(b) The department shall
conduct a new disqualification hearing. The hearing officer who originally
ruled on the case may conduct the new disqualification hearing.
(2) The responsible party shall
have ten (10) days after the date of the scheduled hearing to present good
cause for failure to appear. Reasons for good cause shall include:
(a) The responsible party was away from home
during the entire hearing advance notice time period;
(b) The responsible party is unable to read
or to comprehend the hearing notice;
(c) The responsible party moved resulting in
inadequate notice;
(d) Serious
illness of the responsible party or immediate family member;
(e) The failure to appear for the
disqualification hearing was determined to be no fault of the responsible
party; or
(f) Failure on the part
of the responsible party to receive notification.
(3) A hearing officer shall enter a decision
for good cause into the record in addition to the date and time of the
rescheduled hearing as specified in subsection (2) of this section.
(4) The responsible party or legal
representative shall be entitled to one (1) postponement not to exceed thirty
(30) days from the date the disqualification hearing was originally scheduled.
The request for postponement shall be made at least ten (10) days in advance of
the date of the scheduled hearing.
(5) If the hearing is postponed, the time
limits specified in Section 6(5) of this administrative regulation shall be
extended for as many days as the hearing is postponed.
Section 8. Penalties for Medicaid Intentional
Program Violations.
(1) If the
disqualification hearing officer determines that the responsible party
committed a Medicaid intentional program violation, the department shall:
(a) Disqualify the recipient from
participation in the Medicaid Program for a period not to exceed one (1) year
or until the money expended by the department for benefits obtained by Medicaid
intentional program violation is repaid, whichever comes first;
(b) Provide to the responsible party a
written notice prior to imposing the disqualification;
(c) Inform the responsible party of the
period of time for which the recipient shall be disqualified;
(d) Advise the responsible party when the
disqualification shall take effect; and
(e) Inform the responsible party of the final
value of the benefits received, as calculated at the time of the
disqualification hearing, which shall be repaid to the department.
(2) If during a preliminary
investigation a criminal offense is suspected, a case shall be referred for
possible prosecution. In order to facilitate criminal investigative action, the
department shall, at the request of the state agency conducting the criminal
investigation, provide:
(a) Access to, and
free copies of, any records or information kept by the department or its
contractors;
(b) Computerized data
stored by the department or its contractors; and
(c) Access to any information, kept by
providers, to which the agency is authorized as specified in
907
KAR 1:672.
(3) If the recipient is no longer receiving
Medicaid benefits, the department shall inform the responsible party in writing
that the period of disqualification shall begin with the first administratively
feasible month and shall continue for eleven (11) consecutive months.
(4) A notice of their rights and eligibility
status shall be provided to other Medicaid recipients residing in a household
with a responsible party determined to have committed a Medicaid intentional
program violation.
(5) If more than
one (1) Medicaid intentional program violation determination has been made, the
twelve (12) month periods of disqualification shall be served
consecutively.
(6) If the
responsible party committed the Medicaid intentional program violation, the
responsible party shall be disqualified. The recipient shall not be
disqualified.
Section 9.
Exemptions from Disqualifications.
(1) A
recipient who shall be exempt from disqualification for a Medicaid intentional
program violation shall include:
(a) A child
under eighteen (18) years of age; and
(b) A pregnant woman through
postpartum.
(2) An
Individual meeting the criteria for extraordinary circumstances, as determined
by the department's peer review organization, shall be permitted to participate
in the Medicaid Program on a restricted basis, in accordance with Section 10 of
this administrative regulation.
Section 10. Consideration of Extraordinary
Circumstances during the Eligibility Revocation Period.
(1) If a recipient, who is the responsible
party for the Medicaid case has his eligibility revoked as a result of a
Medicaid intentional program violation, the remaining family members shall have
eligibility determined for potential Medicaid benefits, in accordance with
eligibility criteria contained in
907
KAR 20:005,
907
KAR 20:010,
907
KAR 20:020,
907
KAR 20:025, and
907 KAR
20:040.
(2) The department shall reinstate within ten
(10) working days a recipient whose eligibility has been revoked due to a
Medicaid intentional program violation and who has reapplied for benefits under
extraordinary circumstances.
(3) If
a recipient's eligibility has been revoked and then reinstated under
extraordinary circumstances as specified in subsection (2) of this section,
that person shall serve the balance, if any, of the disqualification period,
when the extraordinary circumstance no longer exists. If the disqualification
time period expires during the extraordinary circumstance period, an additional
ineligibility period shall not be imposed on the individual.
(4) A determination of extraordinary
circumstances due to pregnancy shall be made at the local Department for
Community-Based Services office for a recipient who provides a written
statement from a physician verifying pregnancy.
Section 11. Judicial Review.
(1) After notification of a final hearing
decision which upholds the department's action, the department shall:
(a) Notify the responsible party of the right
to pursue judicial review of the decision in accordance with
KRS
13B.140; and
(b) Impose the Medicaid intentional program
violation disqualification regardless of a pending action by the judicial
review.
(2) Reversal of a
hearing decision by judicial review shall result in:
(a) Medicaid benefits of the recipient being
restored to the date of discontinuance; and
(b) All repayment collected from the
responsible person being returned by the department within ninety (90) days of
the decision.
Section
12. Collecting Claims Against the Responsible Party. The
department shall, upon receipt of the hearing decision or voluntary agreement
to repay signed by the recipient or responsible party, initiate collection
action against the recipient or responsible party unless the recipient or
responsible party is unable to be located or has repaid the value of benefits
owed to the department.
Section 13.
Repayment of Medicaid Benefits.
(1) A
recipient or responsible party shall be liable for the repayment of the value
of the benefits to the department if a determination is made that the benefits
were obtained by committing a Medicaid intentional program violation.
(2) Repayment of the value of benefits shall
be accomplished by:
(a) Lump sum payments.
1. If the recipient or responsible party
states he is financially able to pay the entire amount of the claim at one (1)
time, the department shall collect a lump sum payment by cashier's check, money
order or personal check; and
2. The
recipient or responsible party shall not be required to liquidate all of his
resources to make this lump sum payment;
(b) Installments.
1. The department shall negotiate a payment
schedule with the recipient or responsible party for repayment of an amount of
the claim not repaid through a lump sum payment.
2. Payment shall be accepted by the
department in regular installments and shall be paid no later than the tenth
day of each month;
(c)
Civil action for garnishment or liens in a court of competent jurisdiction;
or
(d) A lien on property owned by
the recipient or the responsible party in accordance with
KRS
205.8471.
(3) If the benefits are not repaid within
thirty (30) days of notice from the department, disqualification shall be
applied in accordance with Section 8(1) of this administrative
regulation.
Section 14.
Incorporation by Reference.
(1) Form Map-800,
Notice of Fraud and/or Abuse Committed Against The Medicaid Program, Department
for Medicaid Services, 8/99 edition, is incorporated by reference.
(2) This material may be inspected, copied,
or obtained at the Department for Medicaid Services, 275 East Main Street,
Frankfort, Kentucky, 40621, Monday through Friday, 8 a.m. to 4:30
p.m.
22 Ky.R. 1916;
2304; eff. 7-5-96; 26 Ky.R. 908; 1175; eff. 12-15-99; TAm eff. 9-30-2013; Crt
eff. 12-6-2019.
STATUTORY AUTHORITY:
KRS
194A.030(2),
194A.050(1),
205.8453(4),
EO 2004-726